Ex Parte Backes et al

Patent Trial and Appeal BoardApr 11, 2016

12359545 (P.T.A.B. Apr. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/359,545 01/26/2009 Floyd Backes 570 7590 04/13/2016 P ANITCH SCHWARZE BELISARIO & NADEL LLP ONE COMMERCE SQUARE 2005 MARKET STREET, SUITE 2200 PHILADELPHIA, PA 19103 UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www .uspto.gov ATTORNEY DOCKET NO. CONFIRMATION NO. 688824-135U55 4617 EXAMINER LEE, ANDREW CHUNG CHEUNG ARTUNIT PAPER NUMBER 2411 NOTIFICATION DATE DELIVERY MODE 04/13/2016 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address( es): usptomail@panitchlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FLOYD BACKES and LAURA BRIDGE Appeal2014-005111 Application 12/359,545 Technology Center 2400 Before ST. JOHN COURTENAY III, MELISSA A. HAAPALA, and MATTHEW J. McNEILL, Administrative Patent Judges. McNEILL, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's rejection of claims 1-6, 10-14, and 18-20, which are all the claims pending in this application.2 We have jurisdiction under 35 U.S.C. Â§ 6(b). We reverse. 1 According to Appellants, the real party in interest is Piccata Fund Limited Liability Company. App. Br. 2. However, the current real party in interest (as of Aug. 26, 2015) is recorded in the USPTO official "Patent Assignment Abstract of Title" as Xenogenic Development Limited Liability Company, Wilmington, Delaware. 2 Claims 7-9 and 15-17 are objected to and indicated as being allowable by the Examiner if rewritten in independent form. Final Act. 10. Appeal2014-005111 Application 12/359,545 STATEMENT OF THE CASE Introduction Appellants' present patent application relates to wireless network configuration and power level adjustment for network performance optimization. Spec 1. Claim 1 is illustrative of the invention and reads as follows: 1. A method comprising: ascertaining whether a wireless device currently associated with a current access point should attempt to associate with another access point based at least in part on a level of attenuation of signal strength of transmissions transmitted by the another access point at less than full power; and causing the wireless device to request association with the another access point if said ascertaining ascertains that the wireless device should attempt to associate with the another access point. The Examiner's Rejections Claims 1-5, 10-13, and 18-20 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Yaguchi (US 7,016,691 B2; Mar. 21, 2006) and Yano (US 2005/0030924 Al; Feb. 10, 2005). See Final Act. 2-9. Claims 6 and 14 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Yaguchi, Yano, and Um (US 2007/0037584 Al; Feb. 15, 2007). See Final Act. 9-10. ANALYSIS The Examiner rejected claim 1 as unpatentable over the combination ofYaguchi and Yano. See Final Act. 2-4. Yaguchi teaches handover 2 Appeal2014-005111 Application 12/359,545 control for wireless mobile devices moving between base stations. See Ans. 2 (citing Yaguchi Fig. 2A, Fig. 2B, Fig. 3, Fig. 5, 2:22-30, 6:52-67, 7:1- 28). Yano teaches handover control for wireless LAN devices moving between access points. See Ans. 3 (citing Yano Fig. 1, Fig. 2, Fig. 4, Fig. 5, iii! 34-36, 41, 60-63, 70-72). The Examiner found an ordinarily skilled artisan would have been motivated to combine Y aguchi and Y ano "for providing a novel, high-efficient handoff method of wireless LAN, which develops a complete-new initialization method of moving node handoff." Final Act. 4 (citing Yano iJ 33). Appellants argue the Examiner erred because an ordinarily skilled artisan would not have been motivated to combine Y aguchi and Y ano as proposed by the Examiner. See App. Br. 11-14. 3 In particular, Appellants argue Y ano teaches away from combining Y ano' s WLAN teachings with Y aguchi' s wireless mobile teachings because the "systems are so 'intrinsically different' that the handoff method of one 'cannot be applied to the other."' App. Br. 11. The Examiner does not specifically respond to this argument in the Answer. Appellants have persuaded us the Examiner erred in finding an ordinarily skilled artisan would have been motivated to combine Y aguchi and Yano. As noted by Appellants, Yano teaches that "since the wireless 3 We note incorrect Application No. 10/854,399 is shown in the (left) page headers on pages 2-23 of the Appeal Brief, filed on April 18, 2013. Appropriate correction is required in all future correspondence with the USPTO to prevent incoming papers from being matched with the wrong application file. Although the correct Application No. 12/359,545, filed January 26, 2009, is shown on the first page of the Appeal Brief, we note that Application No. 10/854,399 was abandoned on February 26, 2015. 3 Appeal2014-005111 Application 12/359,545 LAN and the wireless mobile-phone communication are intrinsically different, the handoff method and the QoS parameter in wireless mobile- phone communication cannot be directly applied to the wireless LAN." Yano iJ 26 (emphasis added). Accordingly, an ordinarily skilled artisan presented with the teachings ofYano (directed to WLAN handover) or Yaguchi (directed to wireless mobile handover) would not have been motivated to look to the other reference because the handover techniques for each are incompatible with the other. We are persuaded this teaching away would overcome the rationale provided by the Examiner for combining the references. See In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) ("A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant."). Appellants further argue that even if an ordinarily skilled artisan were motivated to combine Y aguchi and Y ano, the combination does not teach or suggest "ascertaining whether a wireless device currently associated with a current access point should attempt to associate with another access point based at least in part on a level of attenuation of signal strength of transmissions transmitted by the another access point at less than full power." See App. Br. 14-15. In particular, Appellants argue Y ano teaches ascertaining the signal strength of transmissions, but does not teach the transmissions by the another access point are at less than full power. Id. The Examiner responds that Y ano teaches determining signal strength using the signal to noise ratio (SNR) and comparing it against two thresholds: a low threshold (h) and a high threshold (H). See Ans. 8-9 (citing Yano Fig. 4 Appeal2014-005111 Application 12/359,545 1, Fig. 2, Fig. 4, Fig. 5, iii! 34-36, 41, 60-63, 70-72). According to the Examiner, threshold H implies high signal power and the access point's SNR is less than threshold H, implying less than full power. Id. Appellants have persuaded us the Examiner erred in finding the combination of Y aguchi and Y ano teaches the ascertaining limitation, and in particular transmissions by the another access point are at less than full power. Yano teaches determining the signal strength of the old access point (the claimed "current access point") and the new access point (the claimed "another access point") using the SNR for each access point. See, e.g., Y ano iii! 34-36. However, the cited portions of Yano do not teach any particular power value for the "another access point." The two thresholds cited by the Examiner are used to determine the SNR for the current access point, not the new access point. See, e.g., Yano iii! 37, 41. Accordingly, even ifthe SNR is used to approximate signal power, the threshold H relates to the current access point's power. Yano does not teach that the mobile device monitors the SNR for the "another access point," instead teaching that the new access point is selected "mainly based on the receiving signal strength, association time, and traffic load of the connection point." Yano iJ 72. Accordingly, Appellants have persuaded us the Examiner erred in finding Y ano teaches or suggests the "transmissions transmitted by the another access point at less than full power," as claimed. CONCLUSIONS On the record before us and in view of the analysis above, Appellants have persuaded us that the Examiner erred rejecting claim 1. Therefore, we do not sustain the rejection of claim 1, independent claims 10 and 18, which 5 Appeal2014-005111 Application 12/359,545 recite the aforementioned contested limitation in commensurate form, and claims 2-6, 11-14, 19, and 20 dependent therefrom. DECISION The decision of the Examiner to reject claims 1-6, 10-14, and 18-20 is reversed. REVERSED 6